A History Lesson for the Kentucky Clerk Refusing to Grant Marriage Licenses

In recent months, as the Supreme Court considered the question of marriage equality, one particular case served as a frequent point of comparison for advocates of gay marriage rights: Loving v. Virginia, the 1967 case that struck down laws that prevented interracial marriage. The case was even cited by Justice Anthony Kennedy in his opinion in the gay marriage case, Obergefell v. Hodges, when he noted that it established the precedent that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Now it seems that the link between Loving and Obergefell doesn’t end there. As a Kentucky county clerk continues to refuse to grant marriage licenses to same-sex couples—despite Obergefell and despite a refusal by the Supreme Court to get involved with her case—it’s worth remembering that it was years after Loving before interracial marriage was actually a given across the United States.

In theory, the Loving ruling meant all anti-miscegenation laws in the United States were invalidated. At the time, more than a dozen states had such laws on the books. But three years later, when Sgt. Louis Voyer (who was white) and Phyllis Bett (who was black) tried to get married in Alabama, they were refused a license by Probate Judge C. Clyde Brittain, on the basis that Alabama law would have made such a license criminal. In fact, Alabama law still made Voyer and Bett’s coupledom criminal in itself, and the Alabama constitution actively barred state lawmakers from legalizing marriage between “any white person and a Negro, or descendant of a Negro.”

In the resulting 1970 case United States v. Brittain, the district court ruling was extremely straightforward: there was no question that the Alabama laws in question were unconstitutional and that Voyer and Bett had the right to marry. The court even held that it didn’t matter if there were some other justification for not allowing them to do so—for example, if the bride did not properly provide proof of residence—because it was so obvious that the real motivation was racial. (This point is perhaps relevant today, as the Kentucky clerk in question has worked around the Obergefell ruling by refusing to grant all marriage licenses—but she has made no secret that her motivation is related to the question of her beliefs about marriage equality.) Nor did it matter that Voyer and Bett had gone ahead and gotten married in Tennessee. There was, the court ruled, reason enough for it to issue an opinion, just to set the record straight:

Although the unconstitutionality of these miscegenation laws cannot be seriously questioned by any trained in the law, we find a situation where the chief law officer of the State of Alabama is not free (and this has been so stipulated) to advise Judges of Probate who are not members of the bar that these miscegenation laws are unconstitutional and should not be followed. Such advice could only (by force of custom if not of law) be given after the Alabama laws had been declared unconstitutional by a court of competent jurisdiction. Given such a situation, there is no reason for this Court to delay making such a declaration until another couple in just the right circumstances next feels the pinch of these laws.

It took years for the last wave of such local tests of Loving to finally die down, as explained by Julie Lavonne Novkov in her book Racial Union. It took another decade or so for the echo of Loving‘s implications to pass through the courts. (It wasn’t until 1984, for example, that the court ruled interracial couples couldn’t be discriminated against in child-custody decisions.) And it wasn’t until 2000 that Alabama actually removed its long-unenforceable anti-miscegenation law from its books.

If the fallout from Loving is any indication, those who side with the Kentucky clerk may have years of fight left to go—but their battle will likely be a losing one in the end.